Understanding the Wells Process: Origin and Key Elements (Part One of Three)

The Wells process notifies a party that it is under investigation by the SEC and provides an opportunity for that party to present its side of the story before the Commission decides whether to proceed with an enforcement action. The process aims to collect for the Commission the views of both its staff and the investigation’s subject on the facts and circumstances that form the basis for the staff’s recommendation. Successful navigation of the Wells process can result in reduced charges, modified relief and settlement – and even no enforcement action at all in some cases. In the wake of the Dodd‑Frank Act, however, the period of time while an SEC investigation is underway but before a Wells notice is formally issued has become even more important. In addition, the increase in parallel criminal investigations of conduct also under investigation by the SEC has changed the calculus of whether and how to respond to a Wells notice. This three-part series demystifies the Wells process – and the pre-Wells process – for fund managers. This first article discusses the origin of the Wells process and its key elements, as well as the impact of Dodd-Frank. The second article will examine the views of members of the SEC’s Enforcement Division on the Wells process. The third article will explain the increasingly important pre-Wells notice process and the key steps of the overall process, including ways for a manager to decide whether to offer a Wells submission in response to a Wells notice. See “How to Prepare for an SEC Investigation: The Pequot Precedent” (Jan. 21, 2009).

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